Ruling Bars Spammer From Repeat Mailings

A U.S. District Court in Atlanta authorized the settlement of a two-year legal battle in which BiblioTech, a U.K.-based Internet service provider, charged Benchmark Print Supply, an Atlanta telesales firm, with bombarding its network with hundreds of millions of unsolicited commercial e-mails promoting its toner cartridges.

In the settlement, BiblioTech agreed to drop all charges against Benchmark, which in return agreed to pay an undisclosed sum to the ISP and abide by a set of prohibited-conduct guidelines regarding future e-mail marketing efforts. Although the settlement of this case denied industry watchers a definitive court ruling on unsolicited commercial e-mail, the terms of the agreement are sparking debate as to whether a new precedent has been set for going after senders of unsolicited bulk commercial e-mail.

Lawyers for BiblioTech claim this agreement marks the first time a negotiated settlement against a bulk e-mail marketer includes a provision expressly forbidding the defendant from committing similar e-mailing conduct against other individuals or corporations.

The settlement states that all "Internet subscribers, domain owners or Internet computer service [firms] are intended third party beneficiaries of this agreement." As a result, they would have the right to seek damages of up to $1,000, plus legal fees, if they can prove that Benchmark sends them e-mails that violate the agreement.

"Any Internet user in the world who is aggrieved by future misconduct by Sam Khuri [Benchmark's owner] or Benchmark Print Supply will have a relatively easy means of enforcing his or her rights," said Paul F. Wellborn, the Atlanta attorney who represented BiblioTech. "If they are wronged by Sam Khuri they have the same rights, if they elect to use them, as BiblioTech does."

Wellborn said he envisioned the settlement's structure as a "call to arms" for larger ISPs and large firms to enforce similar industry wide protections in current and future lawsuits.

"This tells the Goliaths of the Internet world to start policing the entire Internet, not just their own backyards," said Wellborn, who previously represented one of those giants - Earthlink - in its 1998 victory over infamous self-proclaimed spam king Sanford Wallace and his firm, Philadelphia-based CyberPromotions.

The defendant in this case, Sam Khuri, said he did not believe the settlement would provide any new ammunition for companies to sue him and denies that his e-mails violate the prohibited conduct clause.

"We haven't been doing anything that's out of the agreement anyway," Khuri claimed in response to a question about why he agreed to settle. "Everybody can sue us for $1,000 anyway." The settlement defines prohibited conduct as the following: e-mails with a active remove request option, repeat or co-spamming, spoofing and co-spoofing, cloaking or co-cloaking and selling e-mail addresses.

Nowhere in the settlement, however, does it specifically forbid Khuri to send unsolicited e-mails so long as he complies with the terms of this agreement, most importantly removing people who so request. Still, some anti-spam proponents view the BiblioTech case as a good start toward bringing stronger penalties against spammers.

"It's a great thing that BiblioTech did," said John Mozena, vice president and co-founder of the Coalition Against Unsolicited Commercial E-Mail. "We're certainly all in favor of this type of settlement." Mozena did add, however, that he felt that federal laws were still required in order to make it simpler for smaller companies and individuals pursue legal action.

"If there's a trend it needs to be injured parties putting in ticking time bombs that prevent spammers from plying their trade and some sort of legislation that makes it easier for ISPs to sue spammers," he said.

David Sorkin, an assistant professor of law and the director of the Center for Information Technology & Privacy Law at John Marshall Law School, Chicago, doubted that this case, on its own, could have industrywide implications.

"This was an extreme and unusual case," said Sorkin. "BiblioTech's claims apparently were strong enough to put Benchmark out of business and I suspect that Benchmark wouldn't have been able to pay much in damages anyway, so BiblioTech was able to pressure Benchmark into agreeing to this unusual settlement."

Sorkin said he believed that so long as spammers continue to find ways to make other people or companies sustain their costs and obtain a profitable return rate - even if its one or two sales out of a billion e-mails - the practice will continue.

Khuri, when asked if he thought the ruling would hinder Benchmark Print Supply's ability to market its products via the Internet, adamantly said no.

For his part, Wellborn rebuts that assertion and insists the settlement has put important precedents in place toward limiting the number of serious spammers.

"There may be a lot of spammers out there, but only a few are sending tens of millions of e-mails," he said. "If we start shutting them down one at a time, and not in relation to one ISP plaintiff but in relation to the whole Internet, we'll make some great headway."

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